This agreement is made between Scale My Empire and the Client for the purposes of establishing the rights and obligations of the parties, where the Client engages Scale My Empire to perform the Project Services, according to the conditions below.
Scale My Empire provides the Project Services to clients of the Client, which may include performing project management functions ancillary to the Project Services.
1.1 In this Agreement, unless otherwise indicated by the context:
1.2 In this Agreement, unless otherwise indicated by the context:
2. Payment of fees
2.1 The parties agree that a fee (Project Services Fee) is payable to Scale My Empire by the Client.
2.2 The Client is responsible for payment of the Project Services Fee.
2.3 Project Services Fees are in accordance with those outlined in each Estimate or provided to the Client.
2.4 Scale My Empire will provide an estimate of the Project Services Fee to the Client at the commencement of each Project. In some cases, if changes to the scope or extra work is required, the estimate will change. If the estimate changes because of a change in scope or extra work being required, Scale My Empire will, as soon as practicable, issue a new estimated Project Services Fee.
2.5 The Client acknowledges that any delay caused by the Client, including requesting suspension to the Project Services, may cause extra work to be required.
2.6 If at any time the Client requests a variation to the Project, or alters the brief, Scale My Empire will issue a new Estimate to reflect the change in scope created by the variation. Scale My Empire will endeavour to seek written approval for additional expenses pursuant to a variation. However, the Client acknowledges that it is obligated to pay all extra Project Services Fees that were verbally authorised in order to progress promptly with the Project.
2.7 A Commencement Fee of a percentage of the initial Estimate for each Project is payable before the Project Services can be commenced, as specified in the Specification.
2.8 Where applicable, any External Costs incurred by Scale My Empire in relation to any project on behalf of the client will be passed on and invoiced to the Client. The Client acknowledges that third party prices for products and services are outside our control and may be increased; or otherwise amended by the third party without notice and at their sole discretion. Scale My Empire is not responsible for any change in a third party product or service price or other terms nor liable for any loss suffered by you as a result of a third party changing their prices or terms.
2.9 The Client acknowledges that if any External Costs or third party fees (such as software licences) remain unpaid, the third party is authorised to recover such unpaid fees directly from the Client. Scale My Empire is not responsible for and will not be liable for any debt owed by the Client to any third party even if such third party fees have been included in your Client Solution Specification or change request documentation.
2.10 The Client acknowledges and agrees that it is wholly responsible for full payment of invoices issued to it by Scale My Empire for the Project Services performed.
2.11 The Client will pay the Tax Invoice issued by Scale My Empire within 14 days of receipt.
2.12 Scale My Empire reserves the right to apply interest at the General Interest Charge applied by the ATO (which is currently a rate of 9.15% per annum) to all tax invoices that are more than 30 days overdue.
2.13 Where payment remains outstanding for more than 30 days, Scale My Empire reserves the right to assign any debts payable to it to a third party without consultation with the Client.
2.14 Where a Commencement Fee, or the whole or partial payment of the Project Services Fee is required by Scale My Empire before completion of the Project Services, any failure by the Client to make such payment when required by Scale My Empire entitles Scale My Empire to:
2.15 Where any monies owing on tax invoices issued by Scale My Empire remain outstanding, the Client shall indemnify Scale My Empire from and against all costs and disbursements incurred by Scale My Empire in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Scale My Empire collection agency costs, and bank dishonour fees).
2.16 Without prejudice to any other remedies Scale My Empire may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Scale My Empire may suspend or terminate the supply of Goods to the Client. Scale My Empire will not be liable to the Client for any loss or damage the Client suffers because Scale My Empire has exercised its rights under this clause.
2.17 Without prejudice to Scale My Empire’s other remedies at law Scale My Empire shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Scale My Empire shall, whether or not due for payment, become immediately payable if
3. Scale My Empire's obligations
3.1 During the term of this Agreement Scale My Empire will:
4. Client obligations
4.1 For some Project Services, the Client is required to expend a minimum number of hours of key personnel for training and design and review workshops, to ensure the success of the implemented solutions. The minimum time investment is set out in the Specification.
4.2 Where Scale My Empire has scheduled a project workshop or meeting for the Client to attend, cancellation or rescheduling of such a workshop or meeting with less than 48 hours notice will result in delay and increases to the Project Services Fee. Rescheduling a project workshop or meeting will incur a rebooking fee of $185.
4.3 If the Client fails to book (or re-book) the project workshop and/or Planning Session within 30 days from the date of specified in the Specification, Scale My Empire reserves the right to consider the Project Services to be abandoned by the Client and may cancel the Project Services. If the Client wishes to re-open the Project Services after they have been thus abandoned and cancelled, then additional costs will be incurred to reflect our costs in reengaging with the client solution specifications and scheduling time for project build, delivery and training. All such additional costs will vary depending, amongst other matters, on the length of time that has passed since the Project was originally opened. All such additional costs will be notified to you prior to re-commencement of the Project Services. Your instructions to proceed with the Project Services, whether written or verbal, will be deemed to be your acceptance of the additional charges notified to you.
4.4 The Client is solely responsible for the completeness and accuracy of data provided to Scale My Empire. Scale My Empire accepts no liability for Losses, delay, or increases in the Project Services Fee caused by the Client providing incomplete or inaccurate data which must be subsequently rectified.
4.5 The Client is solely responsible for providing the system requirements to Scale My Empire in accordance with the timeframes set out in the Specification. Delay caused by late provision of system requirement information to Scale My Empire may result in increases to the Project Services Fee.
4.6 Scale My Empire may request further instructions or action from the Client to enable it to build or deliver the Project Services. Scale My Empire will provide the Client with a timeframe within which such instructions are required to be provided or action to be taken. If the build or delivery of the Project Services is delayed because of failure to provide the requested instructions or take the required action within the specified timeframe then Scale My Empire will suffer additional expenses to extend the timeframe for the Project Services including, but not limited to, costs to re-schedule the build, delivery and training.
4.7 The Client acknowledges that Scale My Empire may, in its sole discretion, cancel the Project Services if your instructions cannot be obtained or required actions have not been taken by you after reasonable attempts by us to receive them. If Scale My Empire agrees to continue with the Project Services despite your delays, the following costs will be payable in addition to you total Project cost (including additional costs pursuant to change request):
4.8 Where the Client requires previous system data to be imported, Scale My Empire may provide a spreadsheet for the data to be imported in a specified format. It is the responsibility of the client to provide the data in accordance with the defined spreadsheet format provided by Scale My Empire to the Client.
4.9 Where the Client has any problem, issue or complaint with any of the Project Services, this must be communicated to Scale My Empire as soon as practicable when such issue arises, and to give Scale My Empire full opportunity to address issues where appropriate, which may include revision of the Project Services or supply of alternative personnel. Scale My Empire will not be liable for any Losses arising out of any delay by the Client to notify Scale My Empire of any problem or issue with the Project Services, in circumstances where Scale My Empire would have been able to rectify and/or mitigate such problem or issue had they been notified in a timely manner.
5. Non solicitation
5.1 The Client agrees that:
5.2 The obligations accepted by the Client under this clause 5 survive the termination or expiry
of this Agreement.
6. No partnership or employment relationship
6.1 This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
6.2 Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
6.3 The Client indemnifies Scale My Empire for all costs as a result of any Third Party claim as a result of the Client’s breach of this clause.
6.4 Nothing in this Agreement constitutes the relationship of employer and employee between Scale My Empire or any of its employees or representatives and the Client or between Scale My Empire and the Client's Personnel. It is the express intention of the parties that any such relationships are denied.
7. Disclosure and ownership of intellectual property
7.1 Unless otherwise agreed in writing:
7.2 The Client agrees to indemnify Scale My Empire fully against all liabilities, costs and expenses which Scale My Empire may incur as a result of any breach of this clause 7 by the Client or the Client’s Personnel.
7.3 The obligations accepted by the Client under this clause 7 survive the termination or expiry of this Agreement.
8.1 The Client must keep Scale My Empire’s, and any Related Body Corporate of Scale My Empire's Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
8.2 Scale My Empire and the Client acknowledge that information resulting from the activities of the Client pursuant to this Agreement shall also be regarded as Confidential Information and the Client agrees that the Client’s obligations in clause 9.1 extend to this category of information.
8.3 The Client’s obligations with regard to the Confidential Information will continue for so long as the Confidential Information is maintained on a confidential basis by:
8.4 If this Agreement is terminated by either party:
8.5 The Confidential Information does not include information which:
8.6 The Client agrees to indemnify Scale My Empire fully against all liabilities, costs and expenses which Scale My Empire may incur as a result of any breach of this clause 9 by the Client.
8.7 The Client acknowledges that damages may be an inadequate remedy for breach of this clause 9 and that Scale My Empire may obtain injunctive relief against the Client for any breach of this clause 8.
8.8 The obligations accepted by the Client under this clause 8 survive termination or expiry of this Agreement.
9. Warranties, liability and indemnities
9.1 Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
9.2 The Client warrants that the Client has no authority to engage the services of any person as an employee or agent of Scale My Empire.
9.3 The Client warrants that the Client shall not incur any liability on behalf of Scale My Empire or in any way pledge or purport to pledge Scale My Empire's credit or accept any other or make any contract binding upon Scale My Empire without prior approval being given by Scale My Empire.
9.4 The Client agrees to fully indemnify and keep indemnified Scale My Empire in respect of:
9.5 The obligations accepted by the Client and Scale My Empire under this clause 9 survive termination or expiry of this Agreement.
9.6 The Client warrants that the individual who signs this agreement on its behalf is authorised to do so.
10. Term and termination
10.1 This agreement commences on the date of signing of this Agreement ("Commencement Date").
10.2 This agreement will remain in force until terminated by either party and full payment of the Project Services Fee has been received by Scale My Empire.
10.3 Either party may terminate this Agreement for any reason by giving thirty (30) days' written notice to the other party.
10.4 If a Project is cancelled or abandoned prior to being completed, the Client acknowledges and agrees that the Project Services Fee for that Project is payable. Scale My Empire will issue an invoice for all work completed on the Project up to the time and date that written notice was given to Scale My Empire that the Project was cancelled.
10.5 If this agreement is terminated within 14 days of commencement:
10.6 Scale My Empire is entitled to terminate this Agreement without notice should any of the circumstances referred to in Clause 2.17 above arise.
11. No Assignment without Consent
11.1 A party may not assign its rights pursuant to this Deed without the prior written consent of the other party or parties, which consent may not be unreasonably withheld.
12.1 Unless otherwise provided in this Agreement, any monies payable under this Agreement have been calculated without regard to GST.
12.2 Any amount which is payable on account of GST as a consequence of any supply made under this Agreement is to be paid to the party making the supply at the same time as payment is made for the relevant supply.
13. Costs and Disbursements
13.1 Each party must pay its own legal costs and disbursements in relation to the negotiation, preparation and completion of this Agreement and other documents referred to in it, unless expressly stated otherwise.
14.1 A notice or other communication required or permitted to be given by one party to another must be in writing and:
14.2 A notice or other communication is taken to have been given (unless otherwise proved):
14.3 A party may change its address for service by giving notice of that change in writing to the other parties.
15. Waiver or Variation
15.1 A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.
15.2 The exercise of a power or right does not preclude:
15.3 The variation or waiver of a provision of this Agreement or a party's consent to a departure from a provision by another party will be ineffective unless in writing executed by the parties.
16. Governing Law and Jurisdiction
16.1 This Agreement is governed by the laws of Victoria.
16.2 Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria.
17. Further assurance
17.1 Each Party to this Agreement shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
18.1 If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
19.1 This Agreement may be executed in any number of counterparts each of which will be an original but such counterparts together will constitute one and the same instrument and the date of the Agreement will be the date on which it is executed by the last party.
20. Whole Agreement
20.1 In relation to the subject matter of this Agreement: